The tort of defamation may be one of the hardest to determine. It really is a “you know it when you see it” type of tort, to quote the Supreme Court. The issue is rapidly evolving as language and culture change and there is always a need to balance this tort with free speech rights guaranteed by the Constitution.
Defamation includes both slander (oral defamation) and libel (printed or written defamation). Illinois has abolished these common law distinctions but many courts will continue to use the terms to distinguish between the different types of harm.
If you believe you are the victim of defamation it is imperative to seek the advice of an attorney immediately. An attorney can assess the merits of your case and decide the best way to proceed. Each state is different so it is best to seek a local attorney. Illinois allows for two distinctions in defamation: per se and per quod. Defamation per se is communication that is obviously defamatory as soon as it is communicated. Very few individuals would not find this type of communication offensive. The five categories of per se defamation are:
- Statements that accuse another of having committed a crime of moral turpitude;
- Statements that insinuate the subject has a loathsome communicable disease;
- Statements that charge the subject has a lack of integrity in the workplace;
- Statements that reflect adversely on a person’s ability to conduct their business, trade, profession, or office;
- Statements that assign acts of fornication or adultery to a person.
Defamation per quod is when the defamatory statement is not obvious on its face and requires extrinsic evidence to prove injury. A plaintiff will have to explain with particularity why the statement is defamatory and it must not fall into one of the per se categories.
Damages are presumed in per se cases and there is no need for a plaintiff to plead them. They must be pled with particularity in a per quod case and they can only be for pecuniary (money) losses. Per se cases allow for economic and emotional injury, embarrassment, and impairment to reputation. When defamation is made with malice, meaning that the person made the statement with the knowledge it was false, punitive damages may be available.
Illinois allows for several defenses in defamation cases:
- Truth. Proving the truth of a statement is an absolute defense.
- Absolute privilege. These are statements made in any part of a judicial or quasi-judicial proceeding.
- Qualified privilege. Some statements may be privileged when considering the circumstances surrounding when the statement was made. For example, a child abuse accusation may be privileged if a person believed a reasonable reason existed to make that statement. Reckless behavior will not be covered under this privilege.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases.
Consult an attorney in your area for further guidance. If you suspect defamation please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.